IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBERT FRANCIS CASSIDY, 

 Plaintiff, 

vs. Civil Action 2:12-cv-668 

 Judge Marbley 

 Magistrate Judge King 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. Background 

This is an action instituted under the provisions of 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s applications for disability insurance 

benefits and supplemental security income for the period prior to 

plaintiff’s 55th birthday. This matter is now before the Court on 

Plaintiff’s Statement of Errors (“Statement of Errors”), Doc. No. 13, 

defendant’s Opposition to Plaintiff’s Statement of Errors 

(“Commissioner’s Response”), Doc. No. 20, and Plaintiff’s Reply, Doc. 

No. 21.

 Plaintiff Robert Francis Cassidy filed his applications for 

benefits on October 1, 2008, alleging that he has been disabled since 

April 16, 2005. TR 66, 1003.1

 The applications were denied initially 

and upon reconsideration, and plaintiff requested a de novo hearing 

before an administrative law judge. 

 

1 TR refers to the certified administrative record manually filed in this 

action by the Commissioner. 

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An administrative hearing was held on September 21, 2011, at 

which plaintiff, represented by counsel, appeared and testified, as 

did Larry A. Bell, who testified as a vocational expert. TR 955. In 

a decision dated November 4, 2011, the administrative law judge found 

that plaintiff was not disabled from April 16, 2005, through the date 

of the administrative law judge’s decision. TR 1017. Plaintiff 

requested review of the administrative law judge’s decision by the 

Appeals Council, which granted review on May 23, 2011. TR 12-14. The 

Appeals Council concluded that plaintiff’s residual functional 

capacity (“RFC”) for a reduced range of light work required a finding 

of disability when plaintiff reached the age of 55. See MedicalVocational Guidelines Rule 202.06, 20 C.F.R. Pt. 404, Subpt. P, App. 

2. Id. 

 Plaintiff was 55 years of age on the date of the administrative 

law judge’s decision. See TR 66, 1017. Plaintiff has a high school 

education, is able to communicate in English, and has past relevant 

work as ripsaw operator. TR 13, 992, 1016. Plaintiff was last 

insured for disability insurance purposes on June 30, 2012. TR 1005. 

He has not engaged in substantial gainful activity since April 16, 

2005, his alleged onset date. Id. 

II. Medical Evidence2

 Plaintiff presented to an emergency room on April 16, 2005 with 

sudden onset of numbness and weakness on the left side. TR 239-40. 

He was diagnosed with left side tingling and was discharged the same 

 

2

 Plaintiff’s Statement of Errors challenges the administrative law judge’s 

alleged failure to follow the treating physician rule, to properly evaluate 

plaintiff’s credibility and to accurately portray plaintiff’s limitations in 

a hypothetical to the vocational expert. 

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day. Id. Plaintiff again presented to an emergency room on April 20, 

2005, due to sudden weakness in the left side of his body. TR 211-27. 

Plaintiff was diagnosed with non-carotid small vessel transient 

ischemic attack and degenerative cerebral microvasculopathy and was 

discharged on April 22, 2005. Id. 

Plaintiff presented to an emergency room on September 29, 2008 

with complaints of shortness of breath and chest pain. Diagnoses 

included myocardial infarction and congestive heart failure. TR 267-

79, 290-91. 

 In November 2008, plaintiff underwent the removal of a basal cell 

carcinoma on his upper left nasal area, TR 280, 330, followed by skin 

grafts and radiation therapy. TR 490-92. 

Plaintiff received psychiatric and counseling services at 

Jefferson Behavioral Health System from October 2008 through March 

2012. See TR 310-18, 335-45, 626-718, 868. Upon initial examination, 

Raelyn Conner, M.Ed, P.C.C., diagnosed major depressive disorder, 

single episode, severe without psychotic features; anxiety disorder, 

NOS; cannabis abuse r/o dependence; and r/o bipolar disorder. TR 313. 

Mary Ann Curfman, L.P.C., L.S.W., provided counseling sessions 

beginning October 23, 2008 and saw plaintiff on at least twelve (12) 

additional occasions between February 2009 and June 2010. TR 651, 656, 

661, 665, 671, 684, 688, 695, 700, 704, 709, 710. Ms. Curfman 

completed a Daily Activities Questionnaire and a Mental Status 

Questionnaire on May 7, 2009, TR 397-401, and opined that plaintiff’s 

concentration, memory, and ability to pay attention are impaired, but 

that he is capable of understanding simple directions. Id. Ms. 

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Curfman also noted that plaintiff was unkempt, had difficulty finding 

words at times, was depressed, and experienced auditory hallucinations 

twice per week. Id. 

S.K. Singh, M.D., provided psychiatric care on at least 22 

occasions between December 18, 2008 and March 2012. TR 629, 641, 647, 

653, 663, 674, 677, 685, 690, 701, 705, 711, 874-99. Dr. Singh 

completed a psychiatric/psychological impairment questionnaire on 

August 21, 2011. TR 815-21. Dr. Singh diagnosed bipolar II disorder 

and anxiety disorder, NOS, TR 815, and opined that plaintiff was 

markedly limited in his ability to (1) understand and remember 

detailed instructions, (2) carry out detailed instructions, (3) 

maintain attention and concentration for extended periods, (4) perform 

activities within a schedule, maintain regular attendance, and be 

punctual within customary tolerance, (5) work in coordination with or 

in proximity to others without being distracted by them, (6) complete 

a normal workweek without interruptions from psychologically based 

symptoms and to perform at a consistent pace without an unreasonable 

number and length of rest periods, (7) interact appropriately with the 

general public, (8) accept instructions and respond appropriately to 

criticism from supervisors, (9) get along with co-workers or peers 

without distracting them or exhibiting behavioral extremes, and (10) 

maintain socially appropriate behavior and to adhere to basic 

standards of neatness and cleanliness. TR 818-19. Dr. Singh further 

opined that plaintiff has a poor ability to recall and to relate to 

others, lacks concentration, is easily angered, and would likely be 

absent from work more than three times per month because of his 

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impairments. TR 820. Finally, Dr. Singh opined that plaintiff “does 

not appear to be able to work”. Id. 

 David R. Bousquet, M.Ed., performed a consultative psychological 

evaluation at the request of the state agency on February 13, 2009. TR

349-56. Mr. Bousquet diagnosed major depressive disorder, recurrent 

without psychotic features; anxiety disorder, NOS; and polysubstance 

dependence, past history, in sustained full remission by report. TR

354. Mr. Bousquet assigned an emotional and psychological GAF of 50 

and a functional GAF of 55. TR 355. According to Mr. Bousquet, 

plaintiff was markedly impaired in his ability to relate to others, 

including co-workers and supervisors, and to deal with the stress and 

pressure associated with day-to-day work activities. TR 355-56. 

Plaintiff was unimpaired in his ability to understand, follow, and 

remember simple/basic instructions and/or directions or to maintain 

attention and concentration sufficient to perform simple repetitive 

tasks. Id. 

 Krishnan K Aggarwal, M.D., treated plaintiff on at least nine 

occasions between May 2009 and June 2010. TR 552-59. On June 25, 

2010, Dr. Aggarwal completed a multiple impairment questionnaire in 

which he opined that, in an eight-hour day, plaintiff could sit for no 

more than one hour, could stand or walk for no more than one hour, and 

would be required to change position and move around every 15 minutes. 

TR 561. Plaintiff could lift no more than five pounds occasionally, 

was significant limitations in his ability to engage in repetitive 

reaching, handling, fingering, and lifting, and was essentially 

precluded from grasping, turning, and twisting objects; from using his 

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fingers and hands for fine manipulations; and from using his arms for 

reaching. TR 562-63. Dr. Aggarwal also opined that plaintiff was 

incapable of tolerating even “low stress” at work, must take a 20 to 

30 minute break every 20 minutes and would miss work more than three 

times per month. TR 559-65. In a letter dated June 25, 2010, Dr. 

Aggarwal opined that plaintiff 

was not capable of holding down a regular job. Due to 

memory loss from mini-stroke, diabetes, and epilepsy, the 

patient is untrainable. He would not be able to retain 

information which he would need to learn a job. His pain 

from Neuropathy would prevent him from doing any manual 

labor; and with his history of back surgery, he couldn’t be 

lifting or tugging, pulling or pushing any amount of 

weight. 

TR 551. In a letter dated May 20, 2011, Dr. Aggarwal also opined that 

plaintiff “is totally disabled without consideration of any past or 

present drug and/or alcohol use.” Dr. Aggarwal did not believe that 

plaintiff was using drugs or alcohol at that time. TR 722. 

 A January 2010 pulmonary function study documents mild 

obstructive lung disease with mild improvement after bronchodilators, 

but no significant restrictive lung disease. TR 451. 

Plaintiff reported to the emergency room on March 19, 2010 with 

complaints of chest pain. TR 536, 539. He was diagnosed with chest 

pain, reflex esophagitis, hypertension, and infection lesion on the 

buttock. TR 540. A March 2010 emergency room visit resulted in a 

diagnosis of sinusitis. TR 528-29. 

 On April 7, 2010, plaintiff underwent excision of multiple 

verrucae of both thighs and buttocks, TR 621, and was subsequently 

treated with intravenous antibiotics for infection at the sites. TR 

575-83, 619-25. 

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 Plaintiff reported to the emergency room on May 13, 2010 with 

suicidal thoughts. TR 516, 801. A drug screen was positive for 

cannabis. Plaintiff’s condition improved and he was discharged the 

same day. TR 801-03. 

 Plaintiff reported to the emergency room in June 2010 with right 

knee pain. An x-ray revealed no evidence of fracture or dislocation 

but an MRI revealed small joint effusion, a popliteal cyst and 

degeneration of the medial meniscus. TR 790-814. 

 Plaintiff underwent surgical repair of a hernia on August 17, 

2010. TR 570-71. He was advised against lifting, pulling or pushing 

of more than 25 to 35 pounds for three to four weeks. TR 616. 

 Kristen Haskins, Psy.D., reviewed the record on behalf of the 

state agency and completed a mental residual functional capacity 

assessment and psychiatric review technique form on March 10, 2009. 

TR 763-80. According to Dr. Haskins, plaintiff was moderately limited 

in 12 of 20 areas of functioning related to understanding and memory, 

sustained concentration and persistence, social interaction, and 

adaptation. TR 763-64. She also opined that plaintiff “is capable of 

completing simple and many multi step tasks [that] he is motivated to 

perform in a setting that is not fast paced, does not have stringent 

time or production requirements, where he could work independently 

without over the shoulder supervision;” he “is able to relate 

superficially when he chooses to do so.” TR 766. Plaintiff is mildly 

restricted in his activities of daily living and is moderately limited 

in his ability to maintain social functioning and concentration, 

persistence, or pace. TR 777. 

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 Catherine Flynn, Psy.D., also reviewed the record for the state 

agency and, on June 22, 2009, affirmed Dr. Haskins’ assessment. TR

432. 

 Eli Perencevich, D.O., reviewed the record for the state agency 

and completed a physical residual functional capacity assessment on 

March 11, 2009. TR 825-32. According to Dr. Perencevich, plaintiff 

could occasionally lift and/or carry 20 pounds, frequently lift and/or 

carry 10 pounds, stand and/or walk for a total of six hours in an 8-

hour workday, and sit for a total of six hours in an 8–hour workday. 

TR 826. Dr. Perencevich further opined that plaintiff should avoid 

exposure to unprotected heights or hazardous machinery. TR 829. 

Walter Holbrook, M.D., another state agency physician, affirmed 

Dr. Perencevich’s assessment on November 24, 2009. TR 448. Anton 

Freihofner, M.D., also reviewed the record and, on March 9, 2010, 

reaffirmed the assessment. TR 505. 

III. September 21, 2011 Administrative Hearing 

Plaintiff testified at the administrative hearing that he is 

unable to work because of his depression, bipolar disorder, poor 

circulation in his legs, arthritis in his knees, and foot problems. 

His medications cause dizziness, and he had fallen eight times in the 

previous five months. TR 980-81. He has pain with standing and 

sitting. TR 965, 970-71. Plaintiff described his back pain as 

radiating into his hips and legs at least three days per week. He 

also complained of numbness in his legs, regular headaches, knee pain 

three times per month, and frequent pain from acid reflux disease, and 

angina. TR 979-83. He can concentrate for one and a half to two 

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hours, he has frequent thoughts of worthlessness, decreased energy, 

mood swings, panic attacks, anger and memory problems, and he isolates 

himself. TR 983-97. He 

 Plaintiff can care for his personal needs. He vacuums, cooks and 

washes dishes twice a week, does laundry once a month, and goes 

shopping twice a month. TR 975-76. In a typical day, plaintiff 

watches television, listens to the radio, and plays computer games. 

TR 976-77. 

Plaintiff testified at the administrative hearing that he 

continues to smoke a pack of cigarettes a day; he has not used alcohol 

or marijuana in five years. TR 963, 974. 

The vocational expert was asked to assume a claimant with 

plaintiff’s vocational profile 

who retains the capacity to perform light work, with a 

sit/stand option allowing the person to [INAUDIBLE] for one 

to two minutes, alternate sitting or standing positions at 

30-minute intervals throughout the day without going off 

task. Is limited to no foot control operation, is limited 

to occasional posturals, except no climbing of ladders, 

ropes or scaffolds. Is limited to jobs that can be 

performed while using a hand-held assistive device required 

only for uneven terrain or prolonged ambulation and the 

contralateral upper extremity can be used to lift and carry 

up to exertional limits. Must avoid concentrated exposure 

to extreme cold and heat. Must avoid concentrated exposure 

to wetness and humidity. Must avoid all exposure to 

unprotected heights, hazardous machinery and commercial 

driving. Whose work is limited to simple, routine and 

repetitive tasks in a work environment, free of fast-paced 

production requirements, developing only simple workrelated decisions with few, if any workplace changes. Is 

to have no interaction with the public and only occasional 

interaction with coworkers. 

TR 992-93. The vocational expert responded that such an individual 

could not perform plaintiff’s past relevant work as a ripsaw operator, 

but could perform such light jobs as office cleaner or garment sorter 

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and marker, of which there are approximately 200,000 and 90,000, 

respectively, jobs nationally. TR 992-93. 

IV. Administrative Decision 

 The administrative law judge found that plaintiff’s severe 

impairments consist of myocarditis, history of coronary artery disease 

and transient ischemic attacks, history of basal cell carcinoma, 

affective disorder, anxiety, and substance abuse disorder. TR 1005. 

The administrative law judge also found that plaintiff’s impairments 

neither meet nor equal a listed impairment and leave plaintiff with 

the RFC to 

lift and/or carry 20 pounds occasionally and 10 pounds 

frequently, stand and/or walk for 6 hours total in an 8-

hour workday, and sit for 6 hours total in an 8-hour 

workday. The claimant also requires a sit/stand option 

allowing the claimant, briefly for one to two minutes, to 

change positions at 30 minutes [sic] intervals. He cannot 

operate foot controls. The claimant can occasionally 

balance, stoop, kneel, crouch, and crawl, and climb ramps 

and stairs, but never climb ropes, ladders, or scaffolds. 

He must avoid concentrated exposure to temperature extremes 

as well as wetness and humidity. The claimant must avoid 

all exposure to unprotected heights, hazardous machinery, 

and commercial driving. He is limited to performing simple 

routine repetitive tasks in work environment [sic] free of 

fast-paced production requirements involving only simple 

work related decisions with few, if any work place changes. 

The claimant is to have no interaction with the public and 

only occasional interaction with co-workers. 

TR 1006-08. Although this RFC precluded plaintiff’s past relevant 

work, the administrative law judge relied on the testimony of the 

vocational expert to find that plaintiff is able to perform a 

significant number of jobs in the national economy. TR 1015-16. 

Accordingly, the administrative law judge concluded that plaintiff was 

not disabled within the meaning of the Social Security Act from April 

16, 2005. TR 1017. As noted supra, the Appeals Council modified the 

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administrative law judge’s decision and concluded that, under the 

Medical-Vocational Guidelines, plaintiff was disabled as of the date 

that he reached the age of 55. TR 12-14. 

V. Discussion 

 Pursuant to 42 U.S.C. § 405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is more than a scintilla of 

evidence but less than a preponderance; it is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion. 

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y 

of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This 

Court does not try the case de novo, nor does it resolve conflicts in 

the evidence or questions of credibility. See Brainard v. Sec’y of 

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. 

Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this 

Court must examine the administrative record as a whole. Kirk, 667 

F.2d at 536. If the Commissioner's decision is supported by 

substantial evidence, it must be affirmed even if this Court would 

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 

1058, 1059 (6th Cir. 1983), and even if substantial evidence also 

supports the opposite conclusion. Longworth, 402 F.3d at 595. 

 Plaintiff argues, first, that the administrative law judge 

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erred in evaluating the opinions of his treating physicians, Dr. Singh 

and Dr. Aggarwal. Statement of Errors, PAGEID 52-58. The opinion of 

a treating provider must be given controlling weight if that opinion 

is “well-supported by medically acceptable clinical and laboratory 

diagnostic techniques” and is “not inconsistent with the other 

substantial evidence in [the] case record.” 20 C.F.R. § 

404.1527(c)(2). Even if the opinion of a treating provider is not 

entitled to controlling weight, an administrative law judge is 

nevertheless required to determine how much weight the opinion is 

entitled to by considering such factors as the length, nature and 

extent of the treatment relationship, the frequency of examination, 

the medical specialty of the treating physician, the extent to which 

the opinion is supported by the evidence, and the consistency of the 

opinion with the record as a whole. 20 C.F.R. § 404.1527(c)(2)-(6); 

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); 

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). 

Moreover, an administrative law judge must provide “good reasons” for 

discounting the opinion of a treating provider, i.e., reasons that are 

“‘sufficiently specific to make clear to any subsequent reviewers the 

weight the adjudicator gave to the treating source’s medical opinion 

and the reasons for that weight.’” Rogers v. Comm’r of Soc. Sec., 486 

F.3d 234, 242 (6th Cir. 2007) (quoting SSR 96-2p, 1996 WL 374188, at 

*5 (July 2, 1996)). This special treatment afforded to the opinions 

of treating providers recognizes that 

“these sources are likely to be the medical professionals 

most able to provide a detailed, longitudinal picture of 

[the claimant’s] medical impairment(s) and may bring a 

unique perspective to the medical evidence that cannot be 

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obtained from the objective medical findings alone or from 

reports of individual examinations, such as consultative 

examinations or brief hospitalizations.” 

Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)). 

Dr. Singh treated plaintiff on at least 22 occasions between 

February 2009 and March 2012, see TR 629, 641, 647, 653, 663, 674, 

677, 685, 690, 701, 705, 711, 874-99, and opined in August 2011 that 

plaintiff was markedly limited in 10 of 20 categories of work-related 

functioning and moderately limited in four of 20 such categories. TR 

815-21. Dr. Singh further opined that plaintiff had poor recall and 

ability to relate to others, lacked concentration, was easily angered, 

and would likely be absent from work more than three times per month 

because of his impairments. TR 820. 

The administrative law judge gave “little weight” to Dr. Singh’s 

opinions, stating only that this treating provider’s opinions “are not 

well-supported by objective medical evidence in the record and his 

opinions are inconsistent with the record as a whole.” TR 1015. 

Plaintiff contends that the administrative law judge failed to 

properly evaluate Dr. Singh’s August 2011 opinion. Statement of 

Errors, pp. 14-20. This Court agrees. 

 The Commissioner concedes that Dr. Singh is plaintiff’s “treating 

psychiatrist.” Commissioner’s Response, p. 5. The administrative law 

judge did not, however, characterize Dr. Singh as a treating provider, 

nor did he expressly consider the factors required by Wilson. The 

administrative law judge also failed to expressly discuss Dr. Singh’s 

treatment notes, nor did he explain exactly how Dr. Singh’s opinions 

are “inconsistent with the record as a whole.” The administrative law 

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judge simply has not provided reasons “sufficiently specific to make 

clear to any subsequent reviewers” the reasons for discounting Dr. 

Singh’s opinions. See Rogers, 486 F.3d at 242. 

 The Court also concludes that the administrative law judge failed 

to properly evaluate Dr. Aggarwal’s opinion of disability and 

assessment of plaintiff’s ability to engage in work-related functions. 

The administrative law judge stated only that he accorded “little 

weight to these opinions because they are not well-supported by 

objective medical evidence. Moreover, they are not consistent with 

the record as a whole.” TR 1014. As with Dr. Singh’s opinions, 

however, the administrative law judge wholly failed to explain how 

these opinions are deficient and not entitled to either controlling or 

even great weight. 

 The Court therefore concludes that the matter must be remanded 

for further consideration of the opinions articulated by plaintiff’s 

treating providers, Drs. Singh and Aggarwal. 

 Having concluded that the action must be remanded for further 

consideration of the opinions of plaintiff’s treating providers, the 

Court need not and does not address plaintiff’s remaining arguments. 

 It is therefore RECOMMENDED that the decision of the Commissioner 

be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this 

action be REMANDED for further consideration of the opinions of 

plaintiff’s treating providers. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

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specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

June 24, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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